R v Major [2001] WASCA 46

1 MALCOLM CJ: This is a Crown appeal against sentence. On 6 September 2000 the respondent was convicted after trial of nine counts of indecently dealing with a child under the age of 16 years contrary to s 321(4) of the Criminal Code, one count of unlawful detention contrary to s 333 of the Criminal Code and one count of aggravated sexual penetration without consent contrary to s 326 of the Criminal Code. On the same date he was sentenced to imprisonment for 2 years in respect of each of the offences to be served concurrently. An order was made that he be eligible for parole.

2 The sexual penetration offence involved the respondent penetrating the vagina of a 13-year-old child with his finger. The maximum penalty for the offence under s 326 is imprisonment for 20 years.

3 The complainant was a 13 year old girl. The circumstance of aggravation was that the complainant was under the age of 16. The respondent was aged 57. The respondent was a friend of the complainant's family and had known the complainant for about 8 years, since she was approximately 6 years of age. The complainant called the respondent "Uncle Arthur". The respondent and the complainant's family lived in a small country town. The respondent was a regular visitor to the complainant's house. The respondent came to visit on 17 April 1999. The parents were going out and the complainant was to babysit her younger sisters. When the complainant's parents left the house, they took the respondent with them and dropped him at a local hotel. About 15 minutes after they had left, the respondent returned to the house and knocked on the door. The complainant opened the door and asked the respondent if he had forgotten anything. He said he had not. The respondent then proceeded to enter the house.

4 The complainant turned and went to walk back into the lounge room. When she was half a metre into the lounge room he put one hand on her left shoulder, the other hand on her right wrist and turned her around to face him. He then kissed her using his tongue. He proceeded to commit the offences of counts 1 and 2 on the indictment. These involved putting his hand down the top of the complainant's nightie, playing with her breast with his hand and then kissing the complainant in the area of her breasts.

5 Having done that he asked the complainant to go to her bedroom with him. The complainant replied, "No, I don't want to." The respondent grabbed her arm and walked her to her bedroom pulling her behind him. Although the complainant did not want to go with him, the respondent pulled her back into the bedroom. These facts constituted the offence of deprivation of liberty the subject of count 3 of the indictment.

6 The respondent laid down on the complainant's bed and pulled the complainant on top of him. He then started moving up and down with his erect penis against her vagina. His penis remained inside his pants and the complainant was wearing a nightie. This conduct constituted the offence of indecent dealing the subject of count 4. At the same time the respondent put his hand down the complainant's nightie and was squeezing her breasts with his hand. This constituted the offence of indecent dealing the subject of count 5.

7 The complainant asked to be let go, but the respondent said "No". He also said that he did not want to hurt her. The complainant eventually managed to push the respondent away. The complainant ran from the bedroom into the lounge room. The respondent followed her and walked to the front door, repeatedly telling the complainant "It's okay" and that it would be "our little secret". The respondent left the house.

8 The complainant then decided to go to a friend's house. She went back to her bedroom to put on a jumper. This was because she was scared to stay at home in case the respondent came back. She went outside, but as she put it in her evidence:

"... I got scared that if I told that he would - he would still hurt me again so I decided I would just ring her."

9 She tried but apparently there was no answer. She sat in the lounge room crying and shaking. She did not know what to do. About 15 minutes later her mother telephoned to check that the complainant's younger sisters "were okay". The complainant did not tell her mother what had happened because she was "too scared" of the respondent. She just sat in the lounge room.

10 About 15 or 20 minutes later the respondent knocked on the door and the complainant opened the door slightly to see who it was. She thought that it might have been Linda Bradford, a friend of her mother, who was at the Bowling Club across the road and who had been at the house earlier that evening.

11 The complainant's evidence was that the respondent pushed the door open. The complainant then went to step away from the respondent, but he pulled her towards him. The respondent again started to kiss the complainant putting his tongue inside her mouth and squeezed her breasts. The touching of her breasts in this manner constituted the indecent dealing the subject of count 6. He then fondled her breasts and bottom, which involved the commission of the offence of indecent dealing the subject of count 7. He then pushed the complainant up against the wall, pulled her jumper out and started sucking on her breasts and nipples. This lasted about a minute and constituted the offence of indecent dealing the subject of count 8.

12 The respondent then pushed the complainant's legs apart and rubbed his penis against the complainant. The respondent's penis was erect and he was moving up and down saying, "Come on baby". This went on for a few minutes and constituted the offence of indecent dealing the subject of count 9.

13 The respondent then put his hand up under the complainant's nightie and was rubbing the complainant's knickers in the area of her vagina. This went on for one or two minutes and constituted the offence of indecent dealing the subject of count 10.

14 Finally, the respondent put his finger inside the complainant's vagina. This final act resulted in committing the offence of aggravated sexual penetration the subject of count 11 on the indictment. At this point the complainant's evidence was that she was crying, shaking and "really, really scared". The complainant said that she tried to push the respondent away, but he kept pushing against her harder. Eventually she got away from him and ran out of the back door. She said she "sat in the vegie patch in a ball and I started crying". The respondent came out and was walking around calling out to her and saying that he would not hurt her if she came back. After about 15 minutes the respondent went back inside. She heard the front door slam and when she went over to the fence she saw him walking away from the house. She then went inside, shaking and still crying. Her mother came home about 15 minutes later and asked her what was wrong. She said that she was "just tired" and went to bed. A week later she told a girlfriend what had happened and then told her friend's mother.

15 At his trial, the respondent asserted his innocence of the crimes with which he was charged. The jury returned verdicts of guilty on each count. The respondent fell to be sentenced accordingly.

16 When sentencing the respondent the learned Judge said:

"The facts are, as the jury has found proved beyond reasonable doubt, simply that you were a trusted family friend, you knew that her parents were out and you went to her place, where she was babysitting her younger siblings, not once but twice in the course of the evening and there on each occasion molested her in the various ways described in the indictment, culminating in the act of digital sexual penetration.

As Mr Myers has said, whilst you can't be sentenced to any greater penalty by reason of pleading not guilty, you certainly can't claim any remorse. You have not only molested this girl in the way she alleges, you have breached the trust that her family gave you and you have now, in effect, put her in a public court and called her a liar; so you can claim no remorse.

The impact on her I accept, even in the absence of a victim impact statement, from the evidence of herself, her parents and in particular her mother, has been devastating. One of the great tragedies of this sort of behaviour, which unfortunately this court deals with virtually daily, is that the offender very often has not the slightest idea of the impact of his behaviour on the victim. You took advantage in this case of a young female, presumably on the basis that she wouldn't do anything to let your behaviour become known, and no doubt you wouldn't have been game to try it on with an adult. In my view, this offending therefore has a large number of very serious implications."

17 The learned sentencing Judge also said of the respondent:

"The antecedent report discloses that you have not been before the courts except for one traffic matter many years ago which I will disregard, but I have to say that's often the way with offenders in this sort of case. If they hadn't been trusted by the community, they wouldn't have been in a position where they were able to breach that trust and expect that their behaviour wouldn't be believed by many other people in the community.

The fact that other people in the community trust you and like you, as I have no doubt many do, from the matters put before me, is a two-edged sword. Generally you may be a good member of the community but to mask this sort of activity by that sort of front is, as I say, both common and discreditable.

I take on board the fact that you have no prior record. I treat it as no prior record because, as I say, I disregard the very old traffic matter. It may be that had it not been for the enormous amount of liquor that you had been drinking that this wouldn't have happened, but it has happened and, as I say, you have shown no remorse about it and you have publicly labelled this young lady, whose life you have helped to ruin, a liar. In my view, the crown is quite right, there is no alternative but a custodial term.

In fixing the extent of that custodial term, however, I have regard to your prior good character, your age and health. I don't propose to try and sentence you count by count over the 11 counts. I impose a head sentence which will be concurrent across the various counts.

I make it clear that I intend to impose a sentence which is the minimum that can be imposed in these circumstances given your prior good record, your age and your health. In my view, the absolute minimum to which you can be sentenced is a term of 2 years which I make concurrent across the 11 counts and I make you eligible for parole, the sentence to commence today."

18 The Crown has appealed against the sentences imposed upon the respondent on the following grounds:

"1. The sentences failed to adequately reflect the seriousness of the offences and the circumstances in which they were committed, including:

(a) the age of the complainant - the offences occurred just one month after her thirteenth birthday;

(b) the age of the respondent vis-à-vis the complainant, the accused was aged 57 at the time of the offences;

(c) the element of coercive or forceful behaviour on the part of the respondent;

(d) the breach of the trust the complainant's family placed in the respondent - he was a close family friend and had been for many years;

(e) the premeditation of the respondent in that he deliberately returned to the complainant's house, knowing the complainant's parents were elsewhere, and knowing the complainant was alone, babysitting;

(f) that the respondent committed serious offences against the child complainant, then left the house only after the child complainant broke free from him and ran from her bedroom;

(g) that the act of returning a second time to the complainant's house some 15-20 minutes later and committing further indecent dealings plus the final act of digital penetration upon the child complainant greatly increased the seriousness of the respondent's offending behaviour; and

(h) that the respondent's offending behaviour only ended when the child complainant escaped and ran from the house, and hid in the darkness of the vegetable patch.

2. The learned sentencing Judge erred in failing to have regard to the need for specific or general deterrence in respect of such offences.

3. The learned sentencing Judge erred in imposing a sentence which was manifestly inadequate in all the circumstances of the offences."

19 The principles to be applied on an appeal against sentence brought by the Crown pursuant to s 688(2)(d) of the Criminal Code are well settled: R v Tait (1979) 46 FLR 386 at 387 - 388 per Brennan, Deane and Gallop JJ; Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665; and Dinsdale v The Queen [2000] HCA 54; (2000) 74 ALJR 1538. In Lowndes, Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan J said at 673 - 674:

"Of particular importance in the present case is the principle that a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. This is basic. The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice."

20 This Court will only interfere with the decision of a sentencing Judge if it can be shown that the Judge was in error in acting on a wrong principle, or in misunderstanding or in wrongly assessing some key feature of the evidence. The error may appear in what the sentencing Judge said in the proceedings, or the sentence may be so manifestly excessive or inadequate as to reveal an error.

21 While the learned Judge referred to aspects of this case as having "a large number of very serious implications", I do not consider that a total sentence of imprisonment for 2 years sufficiently reflected the seriousness of the offences and the chapter of criminality which was involved. In Nelson v The Queen unreported; CCA SCt of WA; Library No 950376; 1 June 1995, this Court reduced a sentence of 6 years for a single act of digital penetration to a sentence of 41/2 years on the ground that the sentence was manifestly excessive.

"The general range of sentences commonly imposed for a single act of penile penetration remains of the order of about six years, depending upon the circumstances. Where the victim is under the age of 16 the general range is of the order of eight years. Cases of digital penetration have traditionally been regarded as less serious offences calling for lesser penalties. There was a review of the sentences imposed in a number of cases of digital penetration in Walley v The Queen [unreported; CCA SCt of WA; Library No 8894; 30 May 1991]. In that case a sentence of 41/2 years was reduced to a sentence of three years. The victim in that case was over the age of 16 years."

23 See also Coulter v The Queen, unreported; CCA SCt of WA; Library No 960507; 4 September 1996 where a sentence of 4 years for a digital penetration which was premeditated rather than spontaneous was upheld by this Court. The complainant aged 16 had been hired on the false pretence of taking photographs of her for publication in magazines. That sentence was imposed in circumstances where a plea of guilty had been entered under the fast-track system. In Powell v The Queen, unreported; CCA SCt of WA; Library No 8928; 6 June 1991, it was noted that sentences of up to 3 years had been imposed at that stage and bore appropriate relativity to the sentences of 6 to 8 years commonly imposed for penile penetration without consent. Notwithstanding that there has been a firming up of sentences for digital penetration so that sentences of 4 years have been imposed, that relativity substantially remains: cf R v Griffiths [1999] WASCA 23; and Little v The Queen [2000] WASCA 87.

24 More recently, in Ling v The Queen [2000] WASCA 129, this Court reduced a sentence of imprisonment of 6 years for an aggravated digital penetration of the vagina of a 15 year old girl to a sentence of 41/2 years.

25 In the present case, given that the relevant offence was the culmination of two separate series of sexual offences, committed on the complainant on the one night, it was necessary for the learned Judge to fix an appropriate sentence for each offence and then consider the questions of cumulation and concurrence of sentences, as well as the totality principle in fixing the sentences ultimately imposed: Pearce v The Queen (1998) 194 CLR 610 per McHugh, Hayne and Callinan JJ at [45]. The learned Judge does not appear to have differentiated between the seriousness of the indecent dealing offences and the seriousness of the aggravated digital penetration offence.

26 The maximum penalty under s 326 of the Criminal Code for an offence of sexual penetration of a female under the age of 16 years is imprisonment for 20 years. The maximum penalty is reserved for cases falling into the worst category of the particular offence: Ibbs v The Queen (1987) 164 CLR 447 at 452 per Mason CJ, Brennan, Toohey and Gaudron JJ. In particular, their Honours made it clear in that passage that:

"In a case of sexual assault, a sentencing Judge has to consider where the facts of the particular case lie in a spectrum at one end of which lies the worst type of sexual assault perpetrated by an act which constituted sexual penetration as defined."

27 These remarks apply equally in the context of s 326 of the Code: Nelson v The Queen, supra, at 7 - 8 per Malcolm CJ (with whom Walsh and Murray JJ agreed).

28 While a "tariff" for sexual offences, including offences of digital penetration, remains as elusive as ever, an examination of the cases suggests that, in the context of the other offences committed on the complainant on the night in question, the sentence imposed in the present case was manifestly inadequate.

29 In my opinion, grounds 1 and 3 of the grounds of appeal have been made out. In the present case the seriousness of the offence of digital penetration should be measured, not only in terms of the nature of the offence itself, but also by combination of the breach of trust involved and the disparity in ages between the offender and his victim, as well as the other circumstances referred to in ground 1. Although the learned sentencing Judge regarded the various offences as constituting a one-off incident, I do not consider that they can be regarded as constituting an isolated incident due to a momentary lapse. The learned Judge also appears to have regarded the offences in some way mitigated because "had it not been for the enormous amount of liquor that you had been drinking that this wouldn't have happened." In my opinion, while the consumption of alcohol may provide some explanation for the commission of the offences, it does not provide an excuse. It does not constitute a relevant circumstance of mitigation in this context. When he was committing the first group of offences the respondent clearly recognised that his conduct was unlawful, but despite this he came back to the house and, notwithstanding being repeatedly asked to stop by the complainant, he persisted and committed five further offences culminating in the digital penetration of the complainant's vagina. The offence of digital penetration the subject of count 11 was the most serious of the offences. In my opinion, the circumstances were such that by directing that all the sentences imposed be served concurrently, the result was the total sentence for the respondent's course of conduct was manifestly inadequate. In that context the learned Judge failed to mark the fact that there were two separate episodes of offending and that the first episode of offending was seriously compounded by the respondent's actions in returning to the house and committed a further four offences, culminating in the aggravated digital penetration the subject of count 11, which was the most serious offence. In my opinion, while the other sentences should stand, the sentence in respect of the digital penetration should be increased to a sentence of 4 years to be served cumulatively upon the other sentences. In reaching that conclusion, I have taken full account of the restraints appropriate in the consideration of a Crown appeal against sentence.

30 For these reasons I would allow the Crown appeal, set aside the sentence imposed in respect of the aggravated digital penetration the subject of count 11 and substitute a sentence to be served cumulatively. The sentence of 4 years in relation to count 11 will be cumulative upon the sentences of 2 years in respect of counts 1-10, which will remain concurrent upon each other so that the total sentence to be served will be 6 years. The order for eligibility for parole should stand.

31 PIDGEON J: I agree with the reasons of the Chief Justice and the orders proposed.

32 WALLWORK J: I agree with the reasons for judgment of the Chief Justice and to the orders which have been proposed by his Honour.